Backdoor “Death Panels”?

In a stealthy move, the Obama administration has slipped end-of-life planning, famously criticized as “death panels,” back into the law by means of a new Medicare regulation[1]. The action was exposed, equally stealthily, by The New York Times on Christmas Day when few would be reading the paper. The rule was issued by Dr. Donald M. Berwick, administrator of Medicare and Medicaid Services (CMS) and an advocate of cost-cutting and rationing of health care. The rule takes effect Jan. 1.

When the health care overhaul was stumbling its way through Congress early this year, Sarah Palin was excoriated by Democrats for suggesting that the nascent law included “death panels”[2] for the elderly in order to save costs of treating the oldest and most expensive patients. In a Wall Street Journal op-ed, Palin wrote that Obama had asked Congress to create an independent Medicare Advisory Council-–an unaccountable group of experts charged with containing Medicare costs. She pointed out that in an interview with The New York Times, the president suggested that such a group “should guide decisions regarding that huge driver of cost…the chronically ill and those toward the end of their lives[.]”

Palin went on to write, “Is it any wonder that many of the sick and elderly are concerned that the Democrats’ proposals will ultimately lead to rationing of their health care by—dare I say it—death panels?” That phrase rang true for many Americans.

Palin’s charge and building criticism touched off a torrent of confusion among Democrats. The end-of-life planning was cut from the legislation[3]. But never-to-be-denied cost saving over quality, the Medicare potentate, Dr. Donald Berwick, has secretly restored the end-of life provision through a Medicare regulation. It says Medicare will cover “voluntary advance care planning” to discuss end-of-life treatment as part of the annual doctor’s visit. Doctors will be given federal money to have such talks with patients. And discussions are to include such topics as palliative measures and hospice (the last step on the way to death). The original provision (Section 1233[4]) would have allowed a health care provider other than a doctor to sign end-of-life papers. Having doctors bring up the subject at every annual physical may well suggest to some patients that they must decide on when they want to have “the plug pulled.”

The attitude of backers of the end-of-life provision is most revealing. After learning that the administration had reached up its sleeve to retrieve the controversial provision, Rep. Earl Blumenauer (D-OR), an enthusiastic supporter[5] of Oregon’s physician assisted suicide law, is quoted in the Times story as calling it “a quiet victory” but urged supporters not to be overly vocal about it. “We won’t be shouting from the rooftops because we aren’t out of the woods yet….this regulation could be modified …if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth.” Hush, hush, Blumenauer cautioned in an e-mail, the Times reported. ”We would ask that you not broadcast this accomplishment out to any of your lists, even if they are supporters—e-mails can too easily be forwarded.”

The e-mail didn’t stop there. Treating it like a nefarious act, the e-mail continued: “Thus far it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid targeted response. The longer this goes unnoticed, the better our chances of keeping it.” Now, if this regulation is of real benefit to Medicare beneficiaries, why would its existence have to be kept a dark secret?

When the end-of-life plan was part of the original health-care statute, Rep. John Boehner (R-OH), soon-to-be House Speaker when the new Congress convenes, said, “This provision may start us down a treacherous path toward government encouraged euthanasia[6].” Indeed, in a place like Oregon, where state-sponsored death pills are already offered to the costly dying, we must presume assisted suicide will be part of residents’ end-of-life counseling.

A Harvard study of cancer patients found that on average there was a cost in the last week of life of $1,876 for patients who had discussed end-of-life choices with a doctor, whereas, the cost was $2.917[7] in the last week for those who had not discussed end-of-life choices with a doctor. Not an impressive value, but the upshot is clear: whatever the alleged “service” that semi-imposed, government incentivized end-of-life counseling is supposed to deliver to the dying, the bottom line is money.

Whether House Republicans will attempt to block or change the regulation is unknown. But certainly committee hearings could be held to expose the trickery of the administration in keeping the end-of-life matter alive in this unsavory way.

Before his appointment, Dr. Berwick was president and CEO of the Institute for Healthcare Improvement (IHI) whose stated aim is patient care and reform of health care through lowering costs[8] and waste. The World Socialist Web Site, however, stated that “an examination of IHI studies reveals their policies are not patient–centered, but cost and profit centered, along the lines proposed by the Dartmouth Institute…. The Dartmouth group’s analysis of the health care industry places blame for the high cost of care on doctors and medical care facilities which it claims put their patients through unnecessary or excessive tests or treatments. Dartmouth’s reforms calls for a rationing of health care services. Berwick has called the ‘spending and outcomes’ research of the Dartmouth Institute ‘the most important health care research of the century.’”

The IHI in a 2009 white paper called “Increasing Efficiency and Enhancing Value in Health Care” revealed some of Dr. Berwick’s organization’s basic concepts. It spoke ominously about “dark green dollars” and said its aim is “primarily financial[9].” Any improvement in quality is desirable, but “is secondary.”

So, this is the federal regulator who is overseeing the health-care needs of approximately 100 million people, or one in three Americans, and prefers to operate furtively to get what he wants in whatever manner it takes. He fits neatly into the mold of this administration.